Cohocton Realty Co. v. City of New York

Sherman, J. The question presented by this submission is whether the assessment levied against plaintiff’s property by a board of assessors and confirmed by the board of revision of assessments in September, 1926, is legal and valid. On January 29, 1847, the mayor, aldermen and commonalty of the city of New York made a grant to the Farmers Loan and Trust Company of certain lands then under water. Plaintiff’s realty, located on the northerly side of East Thirty-first street in the borough of Manhattan, lies within that area. On February 5, 1852, the mayor, aldermen and commonalty made a grant, with similar covenants, to Anson G. Phelps of certain lands likewise then under water. This grant is mentioned merely to show that the properties on both sides of the street were subject to substantially the same covenants. The grant to the Farmers Loan and Trust Company included all the land in Thirty-first street, borough of Manhattan, north of the center line thereof, between the high-water line and Avenue A, while the grant to Anson G. Phelps included all the land in said Thirty-first street south of the center line thereof, between the high-water fine and Avenue A. The grant to the Farmers Loan and Trust Company reads, in part, as follows: “ * * * that the said parties of the second part, [grantees] their successors and assigns shall and will from time to time and at all times forever hereafter, at their own proper costs, charges and expenses, uphold and keep in good order and repair, the whole of those parts of the said streets, bulkheads, wharves and avenues which the said parties of the second part have covenanted and agreed to make, erect and build, as aforesaid and will at all times forever hereafter obey, fullfill and observe such ordinances, resolutions, orders and directions as the said parties of the first part and their successors and assigns, shall from time to time enact, pass or make relative thereto, * * * and in case default shall be made by the said parties of the second part, their successors or assigns in building, erecting, making and finishing the said bulkheads, wharves, street and avenue as aforesaid and fill in the same or any part thereof, or complying with any ordinance, resolution or order of the said parties of the first part or their successors when they shall be required as above mentioned, then and in that case, it shall and may be lawful for the said parties of the first part or their successors, to build, erect, make or finish the bulkheads, wharves, streets and avenue as aforesaid, and to fill in the same and to regulate and pave the same and lay the sidewalks thereof at the proper costs and charges of the said parties of the second part, their successors or assigns and to charge to and recover [509] in an action at law from the said parties of the second part, their successors or assigns, the amount thereof, together with the interest thereon and all costs and charges of the proceedings relative to the same, or to sell and dispose of the whole of the said hereby granted premises or any part thereof at public auction, for the most that can be had for the same, and in case of any deficiency, to charge with and recover from the said parties of the second part, their successors or assigns the amount of such deficiency, or to adopt and pursue any legal right or remedy that the said parties of the first part and their successors now possess or enjoy under and by virtue of any act of the Legislature of the State of New York, or that may hereafter be granted unto the said parties of the first part and their successors by the Legislature of the State of New York or to enter into and upon the whole or any part of the above granted premises and to grant the above described premises the right of making the said bulkheads, wharves, streets and avenues and the right of receiving the wharfage, cranage and profits, arising to and from the same, to any other person or persons, their heirs and assigns forever. “And also that they, the said parties of the second part, their successors and assigns shall and will pay all taxes, assessments and impositions, as well ordinary as extraordinary, as now are upon or shall or may be imposed or levied upon the hereby granted premises, under and by virtue of any Act or Acts of the Congress of the United States, of the Legislature of the.State of New York, or by any act, ordinance or resolution of the parties of the first part, or their successors.” In 1873 East Thirty-first street, upon which plaintiff’s property abuts, was paved and the cost of such pavement paid for in 1874 by assessments levied upon the property of plaintiff and adjoining owners. Chapter 449 of the Laws of 1889 was enacted providing, in part, as follows: “ Section 1. Whenever any streets or avenues in the city of New York described in any grant of land under water from the mayor, aldermen and commonalty of the city of New York, containing covenants requiring the grantee, his heirs or assigns, to pave, repave, keep in repair or maintain such streets, shall be in need of repairs, pavement or repavement, the common council of the city of New York, by ordinance, may require the same to be so paved, repaved or repaired, and the expense thereof to be assessed on the property benefited thereby; said work to be done and said assessment to be laid in accordance with the existing provisions of law relating to the paving of streets of the said city; and when [510] ever the owner of a lot so assessed shall have paid any assessment levied for such paving, repaving or repairing such pavement, such payment shall be considered to, and shall, release and discharge such owner from any and every covenant and obligation as to paving, repaving and repairing contained in the water-grant under which said premises are held, and shall release such lot from all liability in respect thereto. Said release of one owner shall in no manner affect the liability of other owners holding under the same grant to comply with the terms and conditions thereof in respect to lands and premises held by them respectively. When any assessment for such paving shall have been once laid and paid -under the provisions of this act, no further assessment shall be imposed for paving, repaving or repairing any such street or avenue, unless it shall be petitioned for by a majority of the owners of the property (who shall also be the owners of a majority of the front feet) on the line of the proposed improvement. * * *. “ § 2. The owner of any lot affected by any water-grant covenants to pave, repair or maintain any street in front of or adjacent to such lot, may notify the commissioner of public works, in writing, in respect of said lot, * * * that he desires, for himself, his heirs and assigns, to be released from the obligation of such covenants and elects and agrees that said lot shall be thereafter hable to be assessed as provided in the first section of this act, * * After this enactment, and prior to its repeal in 1919, assessments in a number of cases were levied thereunder for the repaving of streets within the areas of water grants containing provisions similar to those in the grant to plaintiff’s predecessor and such assessments were paid. On March 6, 1903, William Wicke Company, the then owner of plaintiff’s premises, filed in the office of the president of the borough of Manhattan of the city of New York (the successor of the commissioner of public works) pursuant to the provisions of that statute, a notice certifying and declaring for itself, its successors and assigns, that it desired to be released from the obligation of certain covenants contained in the original grant relating to paving, repairing and maintaining certain streets in front of these premises, and elected and agreed that the lands should thereafter be hable to be assessed as provided in the first section of that act. This notice was accepted by the president of the borough of Manhattan and duly registered in the registry of such notices kept in that office. Chapter 449 of the Laws of 1889 was repealed by chapter 510 of the Laws of 1919. In 1921 the municipal authorities served a notice upon plaintiff and the owners of other property affected by the above mentioned grants requiring them to repave the roadway, [511] and after their failure so to do the Street was repaved in 1923, the expense being defrayed by funds appropriated by the board of estimate for that purpose and a proportionate part of the cost thereof was assessed against plaintiff’s property. Plaintiff having paid this assessment under protest seeks here its recovery upon the ground that the assessment was invalid, since there remained, after the repeal, no authority in the city to assess and collect that sum. With this contention I am not in accord. The repealing statute could not abrogate the contract, indefeasible in character, which had become effective upon the prior filing, acceptance and registration of the notice under the statute of 1889. Irrevocable contractual rights and liabilities had been created prior to its repeal, and they survive that repealing act. Plaintiff’s predecessor acquired an added muniment of title, a property right which could not be taken away from him. Defendant’s right to enforce plaintiff’s liability had likewise accrued and become effective. The repealing law of 1919 must be held to be without retroactive effect. Thereafter no like consent could be filed, but rights previously acquired were unaffected. To hold otherwise would impair the obligation of a contract. (People v. O’Brien, 111 N. Y. 1; City of Buffalo v. Chadeayne, 134 id. 163; Matter of Quinby v. Public Service Commission, 223 id. 244, 262; Fletcher v. Peck, 6 Cranch, 87, 135; Steamship Co. v. Joliffe, 2 Wall. 450; Coombes v. Getz, 285 U. S. 434, 448.) Plaintiff concedes in its brief that if the act of 1889 had not been repealed there would have been ample authority to levy the assessment. The repeal of that statute in my opinion affected neither the vested right nor an action for its enforcement. It is contended that this assessment even though placed upon plaintiff’s property, pursuant to the contract with the municipality, is not authorized to be levied by the Greater New York Charter because the new pavement supplanted a “ permanent pavement,” as defined in section 948 of the charter. That contention overlooks the last paragraph of section 948, which was carefully drawn so as to preserve the city’s rights. Referring to grants by the city, it provides: "Nothing herein contained shall be construed to relieve or release the owners of property, grantees of the city of New York, or of any of the corporations consolidated to form the said city, of or from any covenants to pave or otherwise physically to improve, such streets.” I am unable to agree that payment in 1874 for the pavement of East Thirty-first street by means of assessments levied upon the owners of adjoining property (including plaintiff’s property, the [512] assessment therefor having been paid by plaintiff’s predecessor) operated to release plaintiff from liability upon this subsequent assessment. The plain unchanged language of the original grant repels that conclusion. Even if it be held that the contract rights created in 1903 were legally extinguished by the repealing law of 1919, plaintiff would still be obligated to pay the assessment under the covenant in the original grant by the city in 1847 of the property, whereby the grantee agreed that in case of his default in doing this paving work, the city might have it done and thereafter assess the cost against him. Defendant, therefore, is entitled to judgment in its favor declaring that the said assessment levied against plaintiff’s property is legal and valid but, under the stipulation, without costs. Finch, P. J., and O’Malley, J., concur; Merrell and Townley, JJ., dissent.